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Distr. GENERAL A/HRC/4/26 29 January 2007 Original: ENGLISH
HUMAN RIGHTS COUNCIL Fourth session Item 2 of the provisional agenda
IMPLEMENTATION OF GENERAL ASSEMBLY RESOLUTION 60/251 OF 15 MARCH 2006 ENTITLED “HUMAN RIGHTS COUNCIL” Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin Summary Section I provides a summary of the activities of the Special Rapporteur on the promotion and protection of human rights while countering terrorism undertaken since 15 December 2005. The next two sections focus on two thematic issues that are of special interest to the mandate. Section II contains an analysis of “profiling” in the context of countering terrorism. The Special Rapporteur provides an explanation of the concept of terrorist profiling and an overview of the different contexts in which law-enforcement agencies have employed terrorist-profiling practices. He assesses the compliance of so-called terrorist-profiling practices with human rights standards and sets out permissible forms of terrorist profiling and possible alternatives to the reliance on terrorist profiles. Section III examines the issue of suicide attacks as a form of terrorism. The Special Rapporteur provides a survey of existing research on the phenomenon of suicide terrorism. He addresses “shoot-to-kill” policies and other similar attempts to evade existing international standards on the use of firearms by law-enforcement officials. The conclusions and recommendations regarding terrorist profiling and responses to suicide attacks as a form of terrorism are contained in section IV.
GE.07-10507 (E) 090207
A/HRC/4/26 page 2 CONTENTS Paragraphs Introduction .............................................................................................. I. II. ACTIVITIES OF THE SPECIAL RAPPORTEUR .................... “PROFILING” IN THE CONTEXT OF COUNTERING TERRORISM .............................................................................. A. B. C. III. Introduction ......................................................................... Compliance with human rights standards ........................... Best practices and alternatives to profiling ......................... 1-4 5 - 31 32 - 62 32 - 37 38 - 58 59 - 62 63 - 82 63 - 73 74 - 78 79 - 82 83 - 97 83 - 89 90 - 97 Page 3 3 6 6 9 16 17 17 21 23 24 24 25
SUICIDE ATTACKS AS A FORM OF TERRORISM .............. A. B. C. Introduction ......................................................................... Shoot-to-kill policies ........................................................... Considerations by the Special Rapporteur ..........................
CONCLUSIONS AND RECOMMENDATIONS ...................... A. B. Profiling .............................................................................. Suicide attacks ....................................................................
At the time of the submission of this report the Special Rapporteur can indicate the following developments regarding upcoming country visits. pursuant to Commission on Human Rights resolution 2005/80 and Human Rights Council decision 1/102.3). On 16 December 2005 the Special Rapporteur held a meeting with the International Committee of the Red Cross to discuss issues such as the relationship between human rights and humanitarian law. This report is submitted to the Human Rights Council by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. ACTIVITIES OF THE SPECIAL RAPPORTEUR 5. 6. Spain and Tunisia. . working groups and independent experts of the Commission on Human Rights. the Special Rapporteur thanks the Government of the Republic of the Maldives for extending an invitation to undertake a country visit. In accordance with paragraph 14 (d) of resolution 2005/80. There are also outstanding visit requests to Algeria. Egypt. It includes an overview of his activities since 15 December 2005 and his views on two thematic issues. the Special Rapporteur has written to the Government suggesting dates for 2007 but he has yet to receive a reply. The Government of Israel has given a positive verbal response to the Special Rapporteur’s request for a visit and he hopes to undertake this visit in 2007. Communications sent by the Special Rapporteur and the replies of Governments thereto and press releases issued under the mandate for the period 1 January to 31 December 2006 are reflected in addendum 1 to the present report (A/HRC/4/26/Add. A study on human rights compliance while countering terrorism in Australia is contained in addendum 3 (A/HRC/4/26Add. “profiling” in the context of counter terrorism and suicide attacks as a form of terrorism.A/HRC/4/26 page 3 Introduction 1. He has also received a formal invitation by the Government of the United States of America to visit in the spring of 2007. Malaysia. The Special Rapporteur plans to visit South Africa in mid-April 2007. 2. He also met with various branches of the Office of the High Commissioner for Human Rights (OHCHR) to ensure complementarity with regard to the High Commissioner’s mandate on human rights in the fight against terrorism. the Special Rapporteur has proposed dates for May 2007. 1.2). The Philippines has indicated in writing that a mission may be possible in 2007 or later. On 19 December 2005 the Special Rapporteur met in Vienna with the Terrorism Prevention Branch of the United Nations Office on Drugs and Crime and with the Action against Terrorism Unit of the Organization for Security and Cooperation in Europe. 7. Pakistan. 8. 4. special representatives. the Human Rights Council and other relevant United Nations bodies. the Special Rapporteur worked in close cooperation with other special rapporteurs. Finally. The final report on the fact-finding mission that the Special Rapporteur undertook to Turkey from 16 to 23 February 2006 is contained in addendum 2 (A/HRC/4/26/Add.1). 3.
the Special Rapporteur has provided input and will participate in the working groups which will be tasked with the implementation of the strategy. 10. From 8 to 13 February 2006 the Special Rapporteur visited Addis Ababa and consulted with various officials of the African Union. the work towards an African model law on counter-terrorism and the establishment of the African Centre for Study and Research on Terrorism. On 30 and 31 January 2006 the Special Rapporteur participated in a meeting of the United Nations Counter-Terrorism Implementation Task Force (CTITF).A/HRC/4/26 page 4 9. . 12. the South African Law Reform Commission and the Department of Justice and Constitutional Development. He also met with the Council of Europe’s Commissioner on Human Rights and discussed issues of concern related to his mandate and areas for possible cooperation. The Special Rapporteur provided written input in a meeting of the CTITF held on 13 and 14 July 2006 to follow up on the Secretary-General’s report “Uniting against terrorism: recommendations for a global counter-terrorism strategy” (A/60/825) of 27 April 2006. where the draft working paper on strengthening United Nations capacity and coordination to assist States in combating terrorism was finalized. On 4 April 2006 the Special Rapporteur visited Strasbourg to meet with the Council of Europe’s Steering Committee on Human Rights (CDDH) to give a presentation on his mandate and issues arising in the fight against terrorism. 15. the acting Director of the Gender Directorate. Legal Counsel and the Director of the Chairperson’s Cabinet. Following the adoption on 8 September 2006 of the United Nations Global Counter-Terrorism Strategy (General Assembly resolution 60/288). He met with the Deputy Chairperson of the African Union Commission. On 24 April 2006 the Special Rapporteur met with the Permanent Representatives of Tunisia and the Philippines (and again on 25 September) to reiterate his request for invitations to these countries. The discussions related to the role and instruments of the African Union in protecting and promoting human rights while combating terrorism. He also met with the Deputy Secretary General of the Council of Europe. On 9 March and on 26 September 2006 the Special Rapporteur met with the Permanent Representative of Egypt to the United Nations to discuss the mandate of the Special Rapporteur and to reiterate his request for an invitation for a country visit. including in the context of countering terrorism. On 18 and 19 April 2006 the Special Rapporteur met with OHCHR’s regional office for South Africa and held consultations with several Government of South Africa agencies in Pretoria. 14. the Commissioner for Peace and Security. 11. 13. the South African Police Service. the Director of the Peace and Security Directorate. such as the Department of Foreign Affairs. On 24 March 2006 the Special Rapporteur visited Strasbourg to meet with the Council of Europe’s Committee of Legal Advisers on Public International Law (CAHDI) to give a presentation on the relationship between human rights law and international law.
he visited the United Nations Regional Information Centre and briefed NGO and media representatives on his mandate and his activities. Finland. to discuss the evolution of the mandate and future perspectives. 22. Topics of discussion were the counter-terrorism legislation in force and several cases of individuals who had been charged under the law and the impact on freedom of assembly. Turkey. the definition of terrorism and control orders as a means to combat terrorism. On 3 October 2006 the Special Rapporteur was in Brussels and delivered a statement to the European Parliament Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of prisoners. He also met with the African Group. and the Arab League. such as the use of intelligence before courts. The Special Rapporteur also spoke at a joint parliamentary meeting between the European Parliament and national parliaments of the European Union and its accession countries on how to improve the efficiency of counter-terrorism measures while at the same time respecting fundamental rights. Sweden. On 11 and 12 May 2006 the Special Rapporteur visited Astana. 19. 24. Iceland. On 21 June 2006 the Special Rapporteur addressed a delegation of the European Parliament. Switzerland. . He met with representatives of the Permanent Missions of Algeria. The discussions focused on human rights and national responses to terrorism and “extremism”. Kazakhstan.A/HRC/4/26 page 5 16. 23. 18. From 25 to 28 September 2006 the Special Rapporteur was in Geneva to present his report (E/CN. The meeting focused on how special procedures operate within the newly established Human Rights Council. On 16 May 2006. Furthermore. Jordan. including Denmark. and held discussions with various State authorities (Prokuratura. Pakistan. regarding issues arising in the context of his mandate. On 22 June 2006 an informal meeting was held with representatives of a number of countries. Israel. including illustrative examples. the Special Rapporteur gave a presentation to COTER (the European Union Working Committee on Terrorism) on the methodology of identifying best practices in the field of counter-terrorism. the United Kingdom of Great Britain and Northern Ireland and the United States of America. Parliament. including their definitions and the procedure for proscribing organizations. 20. Counter-Terrorism and Human Rights created at the initiative of the International Commission of Jurists to exchange information on past activities and discuss issues of common concern. Committee for National Security) and civil society actors. South Africa. South Africa. Norway. From 19 to 24 June 2006. 17. the Special Rapporteur attended the thirteenth annual meeting of the special procedures mandates in Geneva. On 20 June 2006 the Special Rapporteur met with representatives of the Government of the Maldives.4/2006/98) to the second session of the Human Rights Council. He also met with the EU counter-terrorism coordinator and relevant EU Commission representatives. the United States of America. On 23 June 2006 the Special Rapporteur met with some members and the secretariat of the Eminent Jurists Panel on Terrorism. 21.
He held consultations with representatives of the Ministry for Foreign Affairs of Israel. 26. “Discriminatory profiles: law enforcement after 9/11 and 7/7” (2005) (5) European Human Rights Law Review. On 29 November the Special Rapporteur attended a meeting of the Working Group on Human Rights (COHOM) of the Council of the European Union to present his mandate and activities. On 24 to 26 October the Special Rapporteur was in New York to present his report (A/61/267) to the Third Committee of the General Assembly. “Terrorist profiling and the importance of a proactive approach to human rights protection” (16 December 2006). Introduction 32. These meetings focused on future cooperation. in recent years. The Special Rapporteur notes that. 28. On 15 to 17 November the Special Rapporteur was represented at a Technical Workshop on Human Rights and International Cooperation in Counter-Terrorism in Liechtenstein. On 8 December the Special Rapporteur attended the European Union Human Rights Forum in Helsinki and spoke about current human rights concerns in the fight against terrorism. 27. 1 . 30. and presented a joint paper on “Procedural guarantees and due process in the context of the transfer of persons in the fight against terrorism”. with a view to preparing a country visit in 2007. 517. 31. available at the Social Science Research Network (SSRN): http://ssrn.com/abstract=952163. the Coordinator of the Al-Qaida and Taliban Monitoring Team. He also met with the CTITF Chair. On 30 November to 1 December the Special Rapporteur convened an expert group meeting in Berlin to examine the promotion and protection of human rights while countering terrorism.A/HRC/4/26 page 6 25. so-called terrorist profiling has become an increasingly significant component of States’ counter-terrorism efforts. 29.1 The Daniel Moeckli. He also met with the Human Rights Commissioner of the Federal Foreign Office of Germany. On 16 October 2006 the Special Rapporteur was represented at a Euro-Med ad hoc meeting on counter terrorism in Brussels. including in the joint identification of best practices while countering terrorism. On 6 to 7 December the Special Rapporteur visited Israel to deliver a keynote address on human rights and terrorism at the Minerva Biennial Conference on Human Rights. The Special Rapporteur had a formal meeting with the Counter-Terrorism Committee (CTC) and met with the Counter-Terrorism Executive Directorate. and a number of non-governmental organizations. “PROFILING” IN THE CONTEXT OF COUNTERING TERRORISM A. Moeckli. II.
designed to identify those likely to have committed a particular criminal act and thus reflecting the evidence the investigators have gathered concerning this act. Profiles can be either descriptive.e. “Terrorist profiling (Draft reply to written question by Sarah Ludford)”. The Special Rapporteur notes that terrorist profiles have been employed. i. i. which have been identified as typical of persons involved in terrorist activities and which may have some predictive value in that respect”. law-enforcement agents often rely on sets of physical or behavioural characteristics when deciding whom to stop and search for counter-terrorism purposes. 30 March 2004 (document 7846/04). “Profiling” is generally defined as the systematic association of sets of physical. for example. designed to identify those who may be involved in some future.3 Terrorist profiling also occurs in less explicit forms. or as-yet-undiscovered.e. in principle. 3 Council of the European Union. For example. It is therefore of grave concern to the Special Rapporteur that. psychological or behavioural variables.2 A group of experts from Europol and several EU member States has been established for this purpose. However. their practices may constitute disproportionate interferences with human rights. . In particular. Detailed profiles based on factors that are statistically proven to correlate with certain criminal conduct may be effective tools better to target limited law-enforcement resources. profiling is.A/HRC/4/26 page 7 European Union (EU) has explicitly asked its member States to cooperate with one another and with Europol (the European police office) to develop “terrorist profiles”. crime. a permissible means of law-enforcement activity. behavioural or psychological characteristics with particular offences and their use as a basis for making law-enforcement decisions.e. national origin or religion. law-enforcement authorities of different States have adopted counter-terrorism practices that are based on terrorist profiles that include characteristics such as a person’s presumed “race”. An illustrative case is the so-called Rasterfahndung programme. initiated by the German authorities in the wake of 11 September 2001 to identify terrorist “sleepers”. when law-enforcement agents use broad profiles that reflect unexamined generalizations. national or ethnic origin or religion are particularly likely to commit crime may lead to practices that are incompatible with the principle of non-discrimination. since 11 September 2001. or they may be predictive. 35. 18 November 2002 (document 11858/3/02 REV 3). searches of personal data sets according to presumed characteristics of suspects. 33. in the context of data-mining initiatives. In the view of the Special Rapporteur. i. The German police forces collected personal records of several million persons from 2 Council of the European Union. defined as “a set of physical. Draft Council Recommendation on the development of terrorist profiles. profiling based on stereotypical assumptions that persons of a certain “race”. ethnicity. 34.
67766 (6 November 2002)).htm.7 The National Security Entry-Exit Registration System imposed fingerprinting. Syrian Arab Republic. Eritrea. 77136 (16 December 2002). Muslim denomination. were selected for questioning solely because they were of a certain age. 28 (explaining that in the Federal State) of Nordrhein-Westfalen. their ethnicity and religion. Iraq. 8 Attorney General John Ashcroft. Bahrain.5 36. Immigration and Customs Enforcement. General Accounting Office. “Special registration groups and procedures”. 1 BvR 518/02. Saudi Arabia.de/ entscheidungen/rs20060404_1bvr051802. or were born in. 5 6 Ibid. indirectly through the choice of the targeted countries. Civil Liberties. April 2003. pp. male immigrants. In the United States. 2363 (16 January 2003). In none of these cases did the Rasterfahndung lead to the bringing of criminal charges for terrorism-related offences. age 18-40.9 4 See the decision of the Bundesverfassungsgericht (the Federal Constitutional Court) of Germany in decision BVerfG. 8-10.000 men eventually interviewed were Arab and/or Muslim. Tunisia. 67 Fed. Reg.8 all of these countries .S. Algeria. the immigration authorities have adopted a series of policies and practices designed to counter terrorism that single out certain groups of immigrants based on their country of origin or nationality and. 2001 (document GAO-03-459). Reg. 6 June 2002. had entered the United States after January 2000 and originated from countries “in which intelligence indicated that there was an Al-Qaida terrorist presence or activity”. 7 Migration Policy Institute. Iran (Islamic Republic of).have predominantly Arab and/or Muslim populations. United Arab Emirates and Yemen (68 Fed. 9 The list includes: Afghanistan. Qatar. Indonesia.6 Although the authorities did not identify these countries.gov/graphics/specialregistration/archive. 70526 (22 November 2002). Jordan. Terrorist profiling based on national or ethnic origin and religion has also been used in the context of immigration controls. “Attorney General’s prepared remarks on the National Security Entry-Exit Registration System”. paras. Reg. Libyan Arab Jamahiriya. certain designated countries. who were not suspected of any criminal activity. photographing and registration requirements for all males who are citizens of. and National Unity after September 11 (2003). 7-8. Oman. Sudan. Approximately 32.html. 4 April 2006.000 persons were identified as potential terrorist sleepers and more closely examined. . Democratic People’s Republic of Korea..A/HRC/4/26 page 8 public and private databases.except for the Democratic People’s Republic of Korea .bverfg. Kuwait.4 The criteria for the search included: being male. U. Reg. 5. almost all the 8. 67 Fed. link through birth or nationality to one of several specified countries with a predominantly Muslim population.ice. Egypt. 41. p. Under the Voluntary Interview Program. 67 Fed.2 million personal data sets were collected). Pakistan. America’s Challenge: Domestic Security. Homeland Security: Justice Department’s Project to Interview Aliens after September 11. Bangladesh. Lebanon. current or former student. See U. Somalia. available at http://www.S. available at http://www. para. Morocco.
the number of persons of Asian ethnicity subjected to section 44 searches rose by 302 per cent as compared to a rise of 118 per cent for white people. but it may be disproportionate when it comes to ethnic groups”). 10 Deputy Attorney General. In the United Kingdom of Great Britain and Northern Ireland. Ethnic Profiling in the Moscow Metro (2006). the FBI Director. available at http://news. 28 and ibid. the Absconder Apprehension Initiative prioritized the enforcement of deportation orders against those 2 per cent of deportable persons who originate from Arab and/or Muslim countries. p. document checks or searches for counter-terrorism purposes. In some cases.2003 (2004). which authorizes the police in designated areas to stop and search people without having to show reasonable suspicion.11 Accordingly. Lapp. Between 2001-2002 and 2002-2003. to be stopped and searched under counter-terrorism legislation than white people. pp.A/HRC/4/26 page 9 Finally.pdf. stops and searches under section 44 of the Terrorism Act 2000. 575-584. the Director of the US Marshals Service and US Attorneys re Guidance for Absconder Apprehension Initiative. 25 January 2002. Open Society Justice Initiative and JURIX. In the view of the Special Rapporteur. p. Home Office. government officials have openly acknowledged that law-enforcement efforts in the counter-terrorism context focus on particular ethnic or religious groups.findlaw. on average. Statistics on Race and the Criminal Justice System . police forces have relied on profiles based on a person’s ethnic and/or religious appearance when conducting stops. Asian people were about 3. 2004 (2005). not exclusively.10 37. which are often carried out in response to terrorist threats. “Asian men targeted in stop and search”. A study of police practices on the Moscow metro system in 2005 found that persons of non-Slavic appearance were.3 times more likely. It is going to be young men. V.13 B. and black people about 4. K. 17 August 2005 (quoting the Chief Constable of the British Transport Police as follows: “We should not waste time searching old white ladies.com/hdocs/docs/ doj/abscndr012502mem. 21. The Guardian. data-mining initiatives based on broad terrorist profiles that include group characteristics such as religion and national origin may constitute a disproportionate and thus arbitrary interference with the right to privacy.6 times more likely. “Pressing public necessity: The unconstitutionality of the Absconder Apprehension Initiative” (2005) 29 New York University Review of Law and Social Change 573. Memorandum for the INS Commissioner. 11 12 13 . It is going to be disproportionate. for example.8 times more likely to be stopped than Slavs.12 Similarly. By 2003-2004. Dodd. 33. Compliance with human rights standards Non-discrimination and other human rights norms 38. police forces in the Russian Federation have subjected ethnic minorities to stops and document checks. have affected ethnic minorities. Terrorist-profiling practices raise concerns with regard to a number of human rights guarantees.
Discrimination on the basis of race and national or ethnic origin is also prohibited by the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). including the right to non-discrimination. General Assembly resolution 34/169. the Special Rapporteur takes the view that stops and searches of persons that are based on stereotypical assumptions that certain religious or ethnic groups are more likely to pose a terrorist threat than others may amount to a disproportionate and arbitrary interference with the freedom of movement.17 Similarly. The Court held that the preventive use of this profiling method would only be compatible with the proportionality requirement if it were shown that there was a “concrete danger” to national security or human life.14 39. which makes clear that the right to non-discrimination on the grounds of race and religion can never be derogated from. article 5 (a) and (d) (i). paragraph 1. see note 4 above. It is on this ground that the German Constitutional Court ruled that the Rasterfahndung initiative. 17 December 1979. for example. 2 (1) (a). article 2 and its Commentary (a). described above.16 This view is supported by article 4. violates the constitutional right to privacy. rather than a general threat situation as it existed since 11 September 2001. the Special Rapporteur observes that any terrorist-profiling practices that are based on distinctions according to a person’s presumed “race”. Because of its relevance to different forms of terrorist profiling. national origin or religion raise the question as to their conformity with the principle of non-discrimination.15 Furthermore. of the ICCPR. the prohibition against discrimination on the grounds of race and religion is generally accepted as a peremptory norm of international law. provides that such officials must “maintain and uphold the human rights of all persons”. ethnicity. 1 BvR 518/02. The guarantees of non-discrimination of articles 2 and 26 of ICCPR prohibit discrimination on grounds such as race. Article 5 of ICERD explicitly prohibits racial discrimination with respect to the “right to equal treatment before […] all […] organs administering justice” and to “freedom of movement”. guaranteed by article 12 of ICCPR. see also articles 1 (1). guaranteed by article 9. . The Special Rapporteur is concerned that profiling based on stereotypical assumptions may bolster sentiments of hostility and xenophobia in the general public towards persons of certain ethnic or religious background. which cannot be set aside by treaty or acquiescence. Code of Conduct for Law Enforcement Officials.A/HRC/4/26 page 10 guaranteed by article 17 of the International Covenant on Civil and Political Rights (ICCPR). in 14 15 16 17 BVerfG. ICERD. See Vienna Convention on the Law of Treaties. These binding obligations of non-discrimination have been reinforced and supplemented by a range of other international and regional standards. national origin and religion. In addition. guaranteed by article 17 and/or the right to personal liberty. article 53. the European Code of Police Ethics of the Council of Europe recommends that “[t]he police shall carry out their tasks in a fair manner. the Special Rapporteur believes that the issue of discrimination deserves particular attention. The Code of Conduct for Law Enforcement Officials. 40. Similarly. guided. the right to privacy. not even in times of an officially proclaimed public emergency. 41.
the experts have cautioned.22 Finally. proportionality. descent. on the grounds of race. and non-discrimination and must be subject to close judicial scrutiny”. Appendix. implement and enforce effective measures to eliminate the phenomenon popularly known as ‘racial profiling’”. the Inter-American Commission on Human Rights. in its Report on Terrorism and Human Rights. 8 on combating racism while fighting terrorism. or national or ethnic origin and that non-citizens are not subjected to racial or ethnic profiling or stereotyping”.19 42. 72. 17 March 2004.21 The European Commission against Racism and Intolerance (ECRI). has asked Governments to ensure that no discrimination ensues from legislation and regulations. 8 on combating racism while fighting terrorism. colour.20 The Special Rapporteur agrees with this view and believes that this is equally applicable to the profiling of persons based upon their religion. article 40. 22 23 .23 18 Recommendation Rec (2001)10 of the Committee of Ministers to member States on the European Code of Police Ethics. para. p. Report on Terrorism and Human Rights (OEA/Ser. para. profiling on the basis of characteristics such as nationality. 22 October 2002. or their implementation. Racial Discrimination. general recommendation 30 on discrimination against non-citizens (2004) (see HRI/GEN/1/Rev. 353. 10. in the field of law-enforcement checks. The Special Rapporteur notes that several international and regional human rights bodies have highlighted the risk of discrimination presented by law-enforcement efforts to counter terrorism. by the principles of impartiality and non-discrimination”. ECRI. “presents a major risk of discrimination”. the EU Network of independent experts on fundamental rights has expressed serious concerns about the development of terrorist profiles. Xenophobia and Related Intolerance (A/CONF.189/12). Programme of Action. “The balance between freedom and security in the response by the European Union and its member States to the Terrorist Threats” (2003). General Policy Recommendation No.18 A provision specifically directed against the use of profiles that are based on racial characteristics is to be found in the Programme of Action adopted at the World Conference against Racism in 2000. in its Policy Recommendation No. 19 United Nations Committee on the Elimination of Racial Discrimination.116).A/HRC/4/26 page 11 particular.L/V/II. The Committee on the Elimination of Racial Discrimination has called on States to “ensure that any measures taken in the fight against terrorism do not discriminate. age or birthplace.8) para. Explanatory Memorandum. document CRI (2004) 26. in purpose or effect. At the regional level. has cautioned that “any use of profiling or similar devices by a state must comply strictly with international principles governing necessity. 21. EU Network of independent experts on fundamental rights. 19 September 2001. urging States “to design. 21 20 Inter-American Commission on Human Rights. Report of the World Conference against Racism.
In assessing proportionality. 13 (1990). 2) (1968) 1 EHRR (European Human Rights Reports) 252. As far as distinctions according to national or ethnic origin and religion are concerned. Human Rights Committee. broad enough to include those who do. the aim of law-enforcement practices that are based on terrorist profiling is the prevention of terrorist attacks. The Netherlands. 13. A) No. communication No. para. and the differential treatment they involve. 57. the following two sub-tests are generally applicable to determine the existence of an objective and reasonable justification. national origin or religion will only be compatible with the principle of non-discrimination if it is supported by objective and reasonable grounds. at the same time. para. a profile would need to be narrow enough to exclude those persons who do not present a terrorist threat and. therefore. a difference in treatment on the basis of a criterion such as race. first. what kind of negative effects these practices may produce. there has to be a reasonable relationship of proportionality between the difference in treatment and the legitimate aim sought to be realized. 46. terrorist profiles that are based on characteristics such as ethnicity. Inter-American Court of Human Rights (Ser.24 44. 24 . According to this jurisprudence. 172/1984 (CCPR/C/OP/2). Second. the Special Rapporteur believes that it is important to consider. Advisory Opinion OC-4/84. However. second. are a proportionate means of achieving this aim. Human Rights Committee. the difference in treatment must pursue a legitimate aim. para. 4 (19 January 1984). this constitutes a legitimate and compelling social need. Belgian Linguistics Case (No. The Special Rapporteur finds these pronouncements consistent with the established jurisprudence of international human rights bodies interpreting the non-discrimination guarantees of the ICCPR and the ICERD.and under-inclusive.A/HRC/4/26 page 12 43. Test of legitimate aim and proportionality 45. 47. 10. The Special Rapporteur takes the view that terrorist-profiling practices that involve distinctions according to a person’s presumed “race” cannot be supported by objective and reasonable grounds. First. Broeks v. because they are based on the wrongful assumption that there are different human races and. whether terrorist-profiling practices are a suitable and effective means of countering terrorism and. The decisive question is therefore whether terrorist-profiling practices. para. As far as the first requirement is concerned. In the view of the Special Rapporteur. inevitably involve unfounded stereotyping through a crude categorization of assumed races. national origin and religion are regularly inaccurate and both over. ethnicity. 18: Non-discrimination (1989). In order to serve as a suitable and effective tool of counter-terrorism. general comment No. Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica. as well as with that of regional bodies on the respective norms contained in regional human rights treaties. such as “white”. 48. “black” and “Asian”.
even though the vast majority of them will turn out to present no risk. HC 165-I. 31. most terrorist profiles use ethnic appearance and national origin as proxies for religion. many of those matching these elements will not be. where Muslim religion is often associated with “Asian” appearance. 52. Second. the Special Rapporteur believes that profiles based on ethnicity. As a consequence. Report of the Official Account of the Bombings in London on 7th July 2005.S. national origin and religion are also under-inclusive in that they will lead law-enforcement agents to miss a range of potential terrorists who do not fit the respective profile. First. in practice. Arab American Demographics. The Special Rapporteur is of the view that ethnicity. available at http://www. religious and social background of potential terrorists is concerned. namely that Muslims and persons of Middle Eastern and South Asian appearance or origin are particularly likely to be involved in terrorist activities. as religious affiliation is normally not readily identifiable (and in any case easy to conceal). Brooke. 28 . “The quantitative analysis of terrorism and immigration: an initial exploration” (2006). 26 27 House of Commons Home Affairs Committee. p. The Stationery Office. “there is not a consistent profile to help identify who may be vulnerable to radicalization”. as far the national. The Special Rapporteur is also concerned that over-inclusive terrorist profiles may overwhelm the law-enforcement system. Muslims. only 24 per cent of all Arab Americans are Muslims. ethnic. only half of those belonging to this ethnic group are in fact Muslims. the Report of the Official Account of the London Bombings has concluded that. for example. the overwhelming majority of those who are Muslims.htm. 21.aaiusa. Several of 25 R. HC 1087. As a consequence. p.27 In the United Kingdom. terrorist-profiling practices that rely on these stereotypical characteristics affect a great number of individuals who are in no way linked to terrorism. The broader the profiles. important law-enforcement resources may be diverted away from more beneficial work.25 Similarly. the greater becomes the number of people whom the police treat as suspects. for example. For example. Leiken and S.A/HRC/4/26 page 13 49. is highly doubtful. 51. 11 May 2006. The Special Rapporteur observes that. Yet ethnicity and national origin are very poor proxies for religion. Sixth Report of Session 2004-05: Terrorism and Community Relations. profiles based on ethnic appearance or national origin are over-inclusive in two respects. London. At the same time. 18 Terrorism and Political Violence 503. national origin and religion are inaccurate indicators because the initial premise on which they are based. Arab American Institute. A recent study of Islamist terrorists arrested or killed in Western States showed that less than half of them were born in Middle Eastern countries.26 50.org/ demographics. 6 April 2005.28 Thus. have of course nothing to do with terrorism.
see note 4 above. The New Republic. Assessing the New Normal: Liberty and Security for the Post-September 11 United States. Leiken. Hahn (FDP) vom 10. 2004 (2005). Kleine Anfrage des Abg. any kind of terrorist profile based on physical characteristics can easily become self-defeating.03. national origin or religion are easy to evade. all of those arrested were white. “Fair Game: Al Qaeda’s New Soldiers”. the widespread.2004 betreffend Ergebnisse der Rasterfahndung und Antwort des Ministers des Innern und für Sport. e. Strategic Studies Institute (2004). for example. 34 35 36 U. Home Office.army. 10. as law-enforcement specialists acknowledge.pdf. Incidentally. e. intelligence-led methods. note 13. Female Suicide Bombers. pp. In 2003-2004. Yet these stops led to only five arrests in connection with terrorism .120 pedestrians were stopped under section 44 (2) of the Terrorism Act 2000. 26 April 2004. the disproportionate targeting of ethnic minorities for stops and document checks in the Moscow metro system has proved to be ineffective in detecting and preventing serious crime.S. The Special Rapporteur observes that. available at http://www.34 Similarly. D. p.a “success” rate of 0. 35. and ethnically disproportionate. Anti-terrorism.33 In the United Kingdom. says Met”.31 53. “Watch for women and child bombers.29 This shows that profiles based on ethnicity. 88.06 per cent.S. 18 May 2004.30 Thus. D. see note 6 above. R. the strategy of mainly targeting immigrants of Middle Eastern descent has not produced any significant results in the form of arrests or investigative leads. 8. 1 BvR 518/02. with the use of female and child suicide bombers. accordingly. in the United States. the few successes achieved by the German police forces in detecting alleged Islamist terrorists were all due to traditional. Zedalis. 18 December 2003.A/HRC/4/26 page 14 recent years’ high profile terrorism suspects would not have been covered by the profile used for the German Rasterfahndung. General Accounting Office. p.36 29 See Privy Counsellor Review Committee. 39. 34. p.strategicstudiesinstitute. 7 August 2005. Hessischer Landtag.35 Finally. use of stop-and-search powers has produced hardly any results. . see note 13 above. The German Rasterfahndung did not result in a single criminal charge for terrorism-related offences. Crime and Security Act 2001 Review: Report. Sunday Times. para. Leppard. 6 and 16. Drucksache 16/2042. profiling practices based on ethnicity.32 Instead. national origin and religion have proved to be largely unsuccessful.g.D. Open Society Justice Initiative and JURIX.g. BVerfG. Lawyers Committee for Human Rights.mil/pdffiles/PUB408. Terrorist groups have regularly proved their ability to adapt their strategies. para. to avoid the stereotype of the male terrorist as just one example. supra. 30 31 32 33 See. See. September 2003.
counter-terrorism law-enforcement policies would have to strengthen the trust between the police and communities. Therefore. … it has cut off valuable sources of community information and intelligence. Adverse effects 56. terrorist “sleepers” in their countries are likely to be Muslim. For terrorist-profiling practices entail considerable negative effects that must also be factored into the proportionality assessment. searched or questioned by the police may feel intimidated or degraded to a certain extent. if. national origin or religion are an unsuitable and ineffective. Middle Eastern and South Asian men. 55. To be successful. it has created deeper racial and ethnic tensions against the police. Profiling practices based on ethnicity. the encounter has a particularly humiliating effect when characteristics such as ethnicity or religion played a role in the law-enforcement officer’s decision. the Metropolitan Police Authority has highlighted “the huge negative impact” on community relations of the use of stop-and-search powers: “It has increased the level of distrust of our police. without producing concrete results. result in a feeling of alienation among the targeted groups. Terrorist-profiling practices single out persons for enhanced law-enforcement attention simply because they match a set of group characteristics. 8 July 2004. Moreover. as it involves a deep mistrust of the police. For the United Kingdom. This stigmatization may. Written Evidence: Memorandum submitted by the Metropolitan Police Authority. national origin or religion can take a profound emotional toll on those subjected to them.”37 The lack of trust between the police and communities may be especially disastrous in the counter-terrorism context. 57. The gathering of intelligence is the key to success in largely preventive law-enforcement operations. means of countering terrorism: they affect thousands of innocent people. even if the classifications underlying these methods did correspond to a higher risk posed by some categories of persons. this would still not mean that their use is justified. 37 . in turn. as some Governments claim. The Special Rapporteur believes that profiling practices have a more serious impact than “neutral” law-enforcement methods. The Special Rapporteur takes the view that the victimization and alienation of certain ethnic and religious groups may have significant negative implications for law-enforcement efforts. The Special Rapporteur is concerned that these individual experiences may translate into negative group effects.A/HRC/4/26 page 15 54. thus contributing to the social construction of all those who share these characteristics as inherently suspect. then it would be crucial for law-enforcement agencies to enjoy the cooperation of the respective communities. and therefore a disproportionate. 58. While anyone stopped. The available evidence suggests that profiling practices based on ethnicity. House of Commons Home Affairs Committee.
characteristics. the use of terrorist profiles that include criteria such as ethnicity. however. Despite the human rights concerns outlined above. in the context of an investigation into a terrorist crime already committed. use profiles that are based on behavioural. these factors can be employed to target search efforts where there is specific intelligence suggesting that someone fulfilling these characteristics is preparing a terrorist act. it may not always be possible for law-enforcement agencies to rely on specific intelligence or useful behavioural indicators in the context of preventive counter-terrorism efforts. GAO/GGD-00-38. The situation is different. . Best practices and alternatives to profiling 59. 10-15. the Special Rapporteur reminds States that behavioural indicators must be implemented in a neutral manner and must not be used as mere proxies for ethnicity. The Special Rapporteur is of the view that in such situations controls should be universal.S. rather than ethnic or religious.39 This policy change resulted in a rise in the proportion of searches leading to the discovery of drugs of more than 300 per cent. national origin and religion is. for example. If. the Customs Service stopped using a profile that was based. available at http://www.40 The Special Rapporteur believes that behaviour is an equally significant indicator in the terrorism context. At the same time. when engaging in preventive counter-terrorism efforts. 60. The Special Rapporteur takes the view that.A/HRC/4/26 page 16 C. 5-6 and 16. pp. While profiles used for such efforts may include behavioural or psychological characteristics. the customs agents were instructed to rely on observational techniques. “Racial profiling doesn’t work”. national origin or religion is justified. on ethnicity and gender in deciding whom to search for drugs. In the late 1990’s. U. not always forbidden. in the view of the Special Rapporteur. Ibid. pp. profiling based on behavioural patterns is significantly more efficient than reliance on ethnicity. The importance of focusing on behaviour is highlighted. 61. among other factors. Customs Service: Better Targeting of Airline Passengers for Personal Searches Could Produce Better Results (2000). However.lamberthconsulting. Where the costs for blanket searches are deemed to be 38 U. Similarly. in the case of preventive counter-terrorism efforts that are not intelligence-led. affecting everyone equally. there are reasonable grounds to assume that the suspect fits a certain descriptive profile. national origin or religion. then the reliance on characteristics such as ethnic appearance.S. General Accounting Office. the Special Rapporteur is of the view that they may not be based on stereotypical generalizations that certain ethnic or religious groups pose a greater terrorist risk than others. 39 40 Lamberth Consulting.. national origin or religion.asp.com/about-racial-profiling/racial-profiling-doesnt-work. by the experiences of the United States Customs Service. He therefore urges States to ensure that law-enforcement authorities. in any event.38 Instead. behavioural analysis and intelligence.
Scheu (ed. Rhee. Legal Aspects of Counter-Terrorism. “The prosecution of terrorists in national law”.). III. States in their counter-terrorism efforts have simultaneously opened new ways to interpret old laws. p. Suicide attacks since 11 September 2001 have received increased attention.A/HRC/4/26 page 17 too high. the targets for heightened scrutiny must be selected on a random rather than on an ethnic or religious basis. The Special Rapporteur therefore calls on States to foster community policing initiatives that build partnerships of trust between law-enforcement agencies and ethnic and other communities. 155-175. 18 to 21 September 2006. Ross Glover (eds. Collateral Language. 2002. In fact. and John Collins. The Special Rapporteur is mindful of the duty of States to protect the life and security of all their inhabitants against terrorist acts. United Kingdom. Stefanie Schmal. as well as enacted new laws which seek to increase the possibilities of State and other security personnel to act in identifying and preventing suicide attacks. Successful counter-terrorism operations depend on the cooperation of the communities where the suspects live. paper presented at the Conference of the European Association for Social Anthropology. Introduction 63. pp. p. 41 See J. Prague. National Research Council. “Legal anthropological perspectives on international human rights and the war on terror”.43 The Special Rapporteur is concerned about the increasing discrepancy between the actions taken by many States and the empirical evidence of what kind of a danger suicide attacks actually pose and which methods can indeed be defined as appropriate. Measuring Racial Discrimination (2004). this is what airlines are already routinely doing. national origin and religion may have the contrary effect of alienating communities from cooperating with law-enforcement authorities and may thus hamper effective gathering of intelligence.). Reetta Toivanen. 870. random searches are impossible for terrorists to evade and may thus be more effective than profiling. both by the security systems of States. Preventive action such as profiling addressed in the previous chapter of this report is increasingly at the fore of these efforts. Bristol. both nationally and on the international level.L. 200.42 64. Profiling based on ethnicity. As opposed to profiling. 2005. The Special Rapporteur reminds States of the crucial importance of good community relations for effective measures against terrorism. See. “Rational and constitutional approaches to airline safety in the face of terrorist threats” (2000) 49 DePaul Law Review 847. 42 43 . SUICIDE ATTACKS AS A FORM OF TERRORISM A. New York.41 62. Suicide attacks as a form of terrorism pose a particular challenge to counter-terrorism measures that are both effective and compatible with human rights. and in the public debate on terrorism. in Harald C.
44 Politically motivated suicides may be committed as a form of protest. Depending on the circumstances. The International Policy Institute for Counter-Terrorism. p. Frankfurt a.flonnet. 47 46 Martha Crenshaw. This caution is necessary also in respect of suicide attacks as a specific form of terrorism. 2004. ultimately.il/articles/articledet. Suicide attacks are used to pressure the target society to demand that its Government change its policies. issue 3. to change the world order.). however. through a high number of civilian casualties and full media coverage.com/fl1703/17031060. see Terrorismus .e.M. 17.Provokation der Macht. Yoram Schweitzer. “The LLTE and suicide terrorism”. 66. However. http://www. I. As a form of terrorism.48 Even though suicide bombers may use religious elements in their rhetoric about killing. vol. 48 49 Some authors stress however that the analysis of Al-Qaida must be understood in the framework of Islam. Suicide attacks are a form of terrorism in which the perpetrator is expected to die.g. February 2000.. 21 April 2000.45 Suicide attacks as a form of terrorism are always morally inexcusable. 18 July 2005. without endangering the lives of others. Rohan Gunaratna.47 It is used more generally as a method to change current power relationships and. such a method may be lawful or in breach of international humanitarian law.A/HRC/4/26 page 18 65. cit. Terror im Dienste Gottes. suicide attacks target “civilians” i. Giving up one’s own life can also happen as an intentionally chosen method of warfare between the parties to an armed conflict. 67. Suicide attacks as a form of terrorism aim. an interview with Robert Pape in The American Conservative. as it frequently leads to uncertainty as to the human rights obligations of States in the context of counter-terrorism. “Suicide Terrorism in Comparative Perspective”. op.ict. Schweitzer. and cautions against this practice. Frontline. Suicide terrorism often has a political aim. Herzilya.49 44 “The logic of suicide terrorism”. München. 1998.htm. the actual purpose of suicide attacks is not to commit suicide but to kill and injure the maximum number of persons. 49. in Countering Suicide Terrorism. “Der religiöse und historische Hintergrund des Selbstmordattentats im Islam”. See. innocent bystanders or members of the general population or segments of it. Tilman Seidensticker. “Suicide terrorism: developments and characteristics”. The Special Rapporteur notes that language related to warfare is commonly used in the context of counter-terrorism.cfm?articleid=112. at the production of a negative psychological effect on an entire population and beyond. .org. 45 As Peter Waldmann has pointed out. 2002.. See e. the main goal is usually secular and political. in Hans Kippenberg/Tilman Seiensticker (eds.46 It has been used as a method to respond to foreign occupation or heavy military action. See online at www.
A/HRC/4/26 page 19 68. their ideologies. in International Journal of Comparative Sociology. Looking more carefully at the individual cases gives evidence that a typical terrorist organization resorting to suicide attacks is rather nourished by national liberation ideologies of the nineteenth century than by any Islamic tradition. See also Raid Sabbah. The Road to Martyrs’ Square: A journey into the world of the suicide bomber. they describe their actions as military defence. “Palestinian suicide bombers”. 52 Anne Marie Oliver and Paul Steinberg. the Special Rapporteur notes that suicide bombings take place in a number of political and religious settings. 70. 2000. Some researchers have pointed out that Islamic suicide bombers argue that their ideology and actions are based on religion. and more recently Sri Lanka’s Tamil Tigers. 1/2004. Historical examples of warfare using suicide attacks as a method were the Japanese kamikaze bombers at the end of the Second World War. Dromer. However. Oxford University Press. “A comparative study of Lebanese and Palestinian perception of suicide bombing: The role of militant Islam and socio-economic status”. No.ultimately .M. 45 (5). is the targeting of civilians as victims. Suicide bombings also often occur in the context of armed conflict.50 Many Palestinian bombers consider Palestine as a country which is forced to exist in circumstances amounting to a war. 2005.54 According to this research. Der Märtyrer als Waffe. Berkeley.Die Geschichte eines Selbstmordattentäters.: dtv. Mark Juergensmeyer. 2002. Frankfurt a. Some studies link the support for and acceptance of suicide bombings clearly with political Islamism. even during an armed conflict. 337-363.to change the world order. External suicide terrorism attempts to change dominant power relationships in the world and . Internally. vol. language and organizational structures resemble the anti-colonial struggles.51 However. External terrorism by means of suicide attacks comprises attacks in which the perpetrators act outside of their home territories. such as the massive attacks of 11 September 2001. University of California Press. suicide bombings may be used as means for the perpetrators to actively seek a political solution in their own country or region. the Special Rapporteur again emphasizes that what turns a suicide attack into terrorism. pp. Der Tod ist ein Geschenk . and particularly of Islam. 54 . München. Terror in the Mind of God: The global rise of religious violence. Hence. symbolism. 69. 53 Simon Haddad. in Journal of Investigative Psychology and Offender Profiling.52 Irrespective of the justification for the suicide attacks. A distinction can be made between internal and external use of suicide bombings.53 71. the greater the commitment to the Islamist 50 51 Joseph Croituru. Typical examples are Palestinian suicide bombers in Israel and the Tamil Tigers in Sri Lanka. in suicide bombings has been the subject of much attention in recent years. 2003. the role of religion. Mali Soibelman.
ed.Daughter. “Sleepers. are female. here at p. 15 May 2004. “The opposite of right society: Witches. Oxford University Press. even though in some organizations their status is contentious. Diego Gambetta. 529-548. the issue of a “sleeper” has gained considerable attention. 13.59 Security measures which ignored women as potential terrorists have failed dramatically.. The New Yorker. in European Journal of Cultural Studies. op.. 15 to 30 per cent. has been broadly projected in the debate. 2006. Julia Jusik. pp. 2003.58 72. 61 . vol. Die Bräute Allahs: Selbstmordattentäterinnen aus Tschetschenien.61 These sleepers.Bomber: Why women become suicide bombers” Bulletin of the Atomic Scientists. Bendix. As with other counter-terrorism measures. 58 59 Nasra Hassan writings. According to available sources. 6 (4). McFarland. while their economic status or levels of education are marginal determiners. 28 August 2003 p. quoted in Mia Bloom. Sabina Magliocco. as a perceived way out of the desperate position. One further challenge has been that female bombers often pretend to be pregnant: this makes them to look vulnerable and helps them to pass security checks. vol. see also the discussion of the concept in Marianne Gullestad. issue 6. recruitment of young future suicide bombers may become easy. 19 November 2001. cit.Sister. pp. discrimination and the formation of sleepers”. “The making of a suicide bomber”. and who would suddenly transform into terrorists. e. “Mother. Female Suicide Bombers. 33:2. 2005. “Mohammed Atta and I: Identification.C. Ethnologia Europaea. a fairly large proportion. “Terrorist and suicide attacks”. moles and martyrs”.57 In such circumstances. 61. St.g. when children have experienced their fathers being humiliated by military personnel. who are educated and well integrated into modern society. Jefferson. footnote 57. Bendix and J. of suicide bombers.55 Other researchers point in the opposite direction. They are active in all organizations. in R.A/HRC/4/26 page 20 world order the more likely people are to endorse suicide terrorism. 60 Audrey Kurth Cronin. pp. Mia Bloom. preventive action and intelligence-gathering forms a significant part of States’ responses to terrorism. terrorist and the discourse of evil”. and not being able to direct their own action so that it could make the feeling of humiliation disappear. 2005. New Scientist. Michael Bond. observing that religious beliefs can both encourage and discourage suicide attacks..60 73. Rosemarie Skaine.56 Some other researchers have explained the personal motivations behind the terrorist suicide bombings by the experience of childhood traumas. eds. Pölten. The imagery of persons living just like anyone else. Making Sense of Suicide Missions. 13-22. 55 56 57 Ibid.. 57. 54-62. or themselves being raped by State representatives. November/December 2005. 12-15. In the context of suicide bombings. here p. In these situations religious or quasi-religious martyrdom can be experienced as a chance to reclaim family honour. vol. Congressional Research Service (CRS) Report for Congress. N.
Wolfgang Schmidbauer elaborates on this from a psychoanalytical perspective in Der Mensch als Bombe. received Royal Assent on 30 March 2006.A/HRC/4/26 page 21 as strangers and “the other” and as potential suicide bombers. B. op. The Special Rapporteur is concerned about legal strategies employed by many States. research is still scarce as to the underlying factors which lead individuals to resort to terrorism and particularly suicide bombings. p. However. As a fairly large proportion of perpetrators of suicide bombings are women. Rowohlt. databanks and data collection. 3162). Surveillance techniques.L. In addition.. The Special Rapporteur observes that many States are trying to carve out considerable space for restrictions to internationally recognized human rights and have allowed exceptional measures in their fight against suicide bombings as a particularly difficult form of terrorism. screening and profiling are some of the counter-terrorism techniques which are also motivated on the basis of preventing suicide bombings. As was demonstrated with respect to profiling. cit. Myanmar. H. op. He reiterates that the use of lethal force by law-enforcement officers must be regulated within the framework of human rights law and its strict standard of necessity. The human rights guarantees related to gender in the context of preventing suicide bombings ought to be a source of particular attention of States. ethnic nor religious background present a basis for predictions of an individual being drawn into terrorism. The organizations behind suicide attacks could not recruit and sustain themselves without acquiescence within the larger society. USA Patriot Act. neither social. 2003. suicide bombings are an inexpensive form of terrorism. are subject to broad speculations as to their identity and the motives behind their actions. and they may enjoy considerable community support. national. suicide attackers are mostly volunteers. of 24 October 2001 (Pub. women have also become the focus of attention in the measures to counter these attacks. p. . in that they may cause the loss of many human lives and are extremely difficult to predict and prevent. 76. 6. 107th Congress.. 107-56. Shoot-to-kill policies 74. tightened refugee and immigration laws and procedures. cit. 62 63 See Kurth Cronin. 64 Terrorism Act 2006. See also Cronin.R. the United Kingdom and the United States of America to extend the powers of policemen to take action against potential suicide bombers.No. Turkey. 8.63 75. such as Nigeria.64 Several innocent persons have in fact been killed.62 Whereas recruitment to terrorist organizations can be very aggressive. The Special Rapporteur notes that suicide bombings present a particular challenge to counter-terrorism measures.
A/HRC/4/26 page 22 77.. The Code of Conduct for Law Enforcement Officials. adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (1990): succinctly stress the limited role for lethal force in all enforcement operations. Principle 9: “In any event. summary or arbitrary executions (A/61/311. paras. 66 See Myanmar’s supposed use of a shoot-on-sight policy in Kayin State against the opposition. intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life. and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. risking confusion among law-enforcement officers. while avoiding the genuinely difficult challenges that are posed by the relevant threat (ibid.66 As noted in 2006 by the Special Rapporteur on extrajudicial.officially sanctioned . Such invocations as “targeted killing”. see also the report to the General Assembly of the Special Rapporteur on extrajudicial. summary or arbitrary executions has. paras. summary or arbitrary executions. or “shoot-to-kill” are used in order to demarcate a new . on the use of lethal force as an absolute last resort. The Special Rapporteur on extrajudicial.4/2006/53.4/2006/53). 44-54. in several of his communications with Governments. The Government of Myanmar was reminded that “shoot-on-sight policies” are a deep and enduring threat to human rights-based law-enforcement approaches and that law-enforcement officials should “as far as possible apply non-violent means” before resorting to the use of force and firearms. 78. para. 45 and 48).1).” Regarding shoot-to-kill policies. In his communication with Nigeria. this Special Rapporteur stressed that the resulting emphasis should be on proportionality. . 45).approach to countering terrorism. drawn attention to the increasing reluctance to respect the right to life as a non-derogable human right. human rights law permits the use of lethal force when it is indispensable to save human life. summary or arbitrary executions that the rhetoric of “shoot-to-kill” should never be used. After the London metro bombing. The rhetoric of shoot-to-kill serves only to displace clear legal standards with a vaguely defined licence to kill. endangering innocent persons and rationalizing mistakes. adopted by General Assembly resolution 34/169. the British police shot down an innocent person and reported it as a regrettable security measure error. paras. These instruments are adequate also in respect of suicide attacks as a form of terrorism. see also the report of the Special Rapporteur on extrajudicial. and only “when strictly unavoidable in order to protect life” (see A/HRC/4/20/Add. 33-45). summary or arbitrary executions (E/CN. or Nigeria’s such policy against the supposed armed robbers in Umuhaia in Abia State. 65 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Regarding the question of proportionate use of force by law-enforcement officials. There is no need for new standards in respect of the use of firearms to prevent suicide terrorism. It risks conveying the message that existing legal standards have been replaced with a vaguely defined licence to kill (E/CN. It is the view of the Special Rapporteur on extrajudicial.65 Several Governments have created their own interpretation of what the use of utmost force means.
10689..to men and to women. outsized surveillance of public places. addressing their needs and protecting and promoting their human rights: “The best way to fight the war on terror is to make the terrorist organizations less appealing . cit. See also Mia Bloom. profiling practices based on religion. op. 30 September 2005). 343-361. The situations in which Governments fear attacks. Considerations by the Special Rapporteur 79. Dying to Win. New York. The available evidence suggests that restrictive asylum and immigration laws. Research suggests that a typical suicide terrorist does not resemble a murderer or a religious cult member. Both the countries concerned and other Governments engaged in development cooperation need to enhance the role of women and children. Upon review of existing research. 68 69 . note 57. the Special Rapporteur finds a lack of accurate information on the phenomenon of suicide terrorism. text messages (SMS) and e-mails are inapt and not productive and thus easily disproportionate means of countering terrorism. Random House. but may also misdirect efforts to prevent suicide attacks. Profiling of potential suicide bombers on the basis of stereotypical images of marginalized and fanatic persons prone to manipulation creates a risk of discrimination. American Political Science Review.”68 Other means for looking for political and social change have to be made available by the countries concerned and through a human rights-based approach to development. See “Combating terrorism through culture”. increased military presence. 2005 and “The strategic logic of suicide terrorism”. surveillance of telephones. The response was that young people must be equipped with means of playing an active role in democratic life and in the exercise of their rights and responsibilities in the society (paragraph 12 v (e) of the recommendation). There is a need for Governments to carefully assess both the human rights implications and the effectiveness of their measures to prevent suicide bombings. 67 Robert Pape has collected 462 profiles of suicide bombers since the 1980s. See Pape. 97. Terrorist groupings will continue to find recruits as long as they can offer marginalized individuals an illusion of a way out of their desperate situation. but is similar to an individual who is politically conscious and could join a grass-roots movement in order to advance something he or she believes in. “Devising a theory of suicide terror”. nationality or ethnicity. The Council of Europe Committee of Ministers instructed its Committee of Experts for the “European Year of Citizenship through Education” (CAHCIT) to discuss how human rights education could contribute to international action against terrorism. has prompted reactions which clearly do not fulfil the criteria of proportionality. Suicide bombings appear to be more politically and socio-economically motivated than religiously or ethnically motivated. recommendation 1687 (2004) (Parliamentary Assembly Doc.69 81. Dying to Kill. in Pape. These reactions must be considered as questionable under international human rights law. See Bloom.67 80.A/HRC/4/26 page 23 C.
Profiling practices based on ethnicity. the Special Rapporteur recommends they be based on individual conduct. national and religious discrimination. ethnic. This data is not . lack of rule of law and violations of human rights. 85. national origin and/or religion involves differential treatment of comparable groups of people. Thus. Profiling 83. and hence more effective than measures based on profiling. the right to liberty or the right to privacy . national origin and/or religion regularly fail to meet this demanding proportionality requirement: not only are they unsuitable and ineffective means of identifying potential terrorists. Such differential treatment is only compatible with the principle of non-discrimination if it is a proportionate means of countering terrorism.A/HRC/4/26 page 24 82. 86. 87. that is. The Special Rapporteur recommends either universal or random security checks as preferred alternatives. political exclusion. these standards should make clear that any terrorist-profiling practices that involve interference with the freedom of movement. but they also entail considerable negative consequences that may render these measures counterproductive in the fight against terrorism. 84. The strategy calls for action to combat these conditions while it makes clear that none of these conditions can excuse or justify terrorism. The Special Rapporteur calls on States to ensure that the use of terrorist-profiling practices by law-enforcement agencies is clearly documented and monitored. Universal or random checks are non-discriminatory and at the same time impossible for terrorists to evade. including the outcomes of the stops. socio-economic marginalization. national origin and religion may only be used in very limited circumstances: namely. Furthermore. Terrorist-profiling practices that are based on “race” are incompatible with human rights. instead of measures based on profiling. law-enforcement officers should be required to record the stops and searches they carry out for counter-terrorism purposes. The Special Rapporteur echoes these statements and underlines the need to address the conditions mentioned also in order to prevent suicide terrorism. The United Nations Global Counter-Terrorism Strategy adopted by the General Assembly in its resolution 60/288 of 8 September 2006 includes the following list of conditions conducive to the spread of terrorism: prolonged unresolved conflicts. dehumanization of victims of terrorism in all its forms and manifestations.must strictly comply with the principle of proportionality. and lack of good governance. behaviour rather than ethnic or religious characteristics. To the extent that States are to rely on counter-terrorism efforts based on profiling. for descriptive profiles or where there is specific intelligence suggesting that someone fulfilling these characteristics is preparing a terrorist act. The Special Rapporteur recommends that States establish clear and strict standards as to what factors law-enforcement agents may or may not employ for their search efforts in the counter-terrorism context.regardless of the criteria on which they are based . CONCLUSIONS AND RECOMMENDATIONS A. These guidelines should make clear that criteria such as ethnicity. Profiling based on ethnicity. IV.
92. States should develop adequate training for all law-enforcement personnel. including when committed in the context of countering terrorism. the Special Rapporteur reiterates his recommendation to apply either universal or random security checks. such training of law-enforcement agents should make clear that profiling based on stereotypical generalizations that certain ethnic or religious groups pose a greater terrorist risk than others is not only impermissible but also ineffective and even counterproductive. also in the context of preventing suicide attacks. 89. Importantly. Further. The Special Rapporteur stresses that the counter-terrorism measures need to be continuously and carefully evaluated in order to ensure that they do not breach human rights. “profiling” can have lethal consequences for totally innocent individuals. in the context of preventing suicide terrorism. 88. Combined with shoot-to-kill policies or other forms of relaxing the standards related to the use of firearms. instead of measures based on profiling. The Special Rapporteur calls on States to develop and implement a system of training of law-enforcement officials that includes clear instructions as to what factors they may legitimately employ for terrorist profiles as well as a substantial training component on human rights and non-discrimination. States must also provide effective means of holding law-enforcement agents accountable for any violations of human rights. as there is a risk that women and especially pregnant women may become targeted by a new wave of counter-terrorism measures. and in this way ensure that human rights guide counter-terrorism measures and not vice versa. including private security agencies. Intelligence agencies need urgently to address the complex cultural and socio-economic issues around suicide attacks and terrorism in general. Factors such as ethnicity or religion may be included in these records but only subject to safeguards such as collecting this data from the persons concerned and separately from the original interference. special attention should be paid to the treatment of women and especially pregnant women and their security and integrity in counter-terrorism measures.A/HRC/4/26 page 25 only crucial in ensuring an effective independent supervision of the counter-terrorism practices employed by law-enforcement agencies but may also be helpful for the internal analysis of the efficiency of these practices. The Special Rapporteur urges States to establish systems of transparent and independent oversight of law-enforcement agencies to monitor and ensure compliance of counter-terrorism practices with human rights standards and operational guidelines. 91. B. The Special Rapporteur recommends scrupulous adherence to and systematic training in existing international standards on the use of firearms by law-enforcement officials. State responses to the risk of suicide attacks demonstrate in a dramatic way the risks inherent in “profiling”. Suicide attacks 90. . 93. Suicide attacks as a specific form of terrorism pose significant challenges to counter-terrorism measures that are at the same time effective and compatible with human rights. Further.
without discrimination. 95. The Special Rapporteur encourages the attempts by non-governmental organizations that are involved in narrowing the gap between groups that may be tempted to resort to terrorism and majority populations. ----- . Israel and Sri Lanka. The Special Rapporteur urges States to engage in global peacebuilding efforts and raise awareness among their populations about existing human rights standards and legitimate methods to react to human rights violations. 97.A/HRC/4/26 page 26 94. in Afghanistan.g. More resources should be invested in research on both the conditions conducive to the spread of suicide bombings as well as methods employed by States and other actors to combat this form of terrorism. The Special Rapporteur also notes that scientific research on explaining the phenomenon of suicide terrorism is unsatisfactory. e. 96. Finally. the Special Rapporteur calls upon States to develop their methods of combating the conditions conducive of suicide bombings. This evidently includes measures to ensure that the human rights of all persons are respected. These efforts include widespread human rights education to all parts of the populations in their territories.
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